The time limit for bringing claims for financial provision under the Inheritance (Provision for Family and Dependants) Act 1975

In an earlier blog I considered the categories of persons eligible to bring a claim under the Inheritance (Provision for Family and Dependants) Act 1975 (“the Inheritance Act”).  In this article I will look at the usual time limit for bringing claims, whether this can be extended, and the approach taken by the courts in the last year to applications for permission to bring claims out of time.

The Inheritance Act provides that any claim for provision under the Act should be brought not more than 6 months of a grant of representation (i.e. grant of probate or letters of administration) by the Probate Registry.  The rationale for this tight timeframe is so that those responsible for administering the estate can get on with their work and to avoid the complications which might arise if distributions from the estate are made before proceedings are brought under the Inheritance Act.

The courts can, however, and frequently do, grant permission for claims to be brought out of time.  The factors which they will take into account when exercising their discretion include the following:

1. The claimant must show sufficient grounds for granting permission out of time.
2. The court must consider whether the claimant has acted promptly and the circumstances in which they have sought permission.
3. Were negotiations between the parties commenced within the 6 month time limit?
4. Had the estate been distributed before the claim was notified to the defendants?
5. Would dismissal of the claim leave the claimant without recourse to other remedies?
6. Does the claimant have an arguable case under the Inheritance Act, if it is allowed to proceed?

In the past year these guidelines have been applied in four reported cases involving Inheritance Act claims, two cases in the High Court and two in the Court of Appeal.

In the first, the High Court decision in Hendry v Hendry [2019] 1976 (Ch), permission was refused despite the fact that proceedings were only issued 2 months out of time.  The key reason permission was refused in that case was the claimant’s failure to give a proper reason for the delay or of the steps taken to make a claim or open negotiations with the beneficiaries of the estate following the death of the deceased and the issuing of a grant of probate.  It was also a considered relevant that the possibility for the claimant of a bringing a negligence claim against their solicitor gave them the potential to receive a remedy.

In Cowan v Foreman 2019 EWCA Civ 1336, the Court of Appeal reversed an earlier High Court decision to refuse permission to bring a claim out of time.  In this case, proceedings were commenced 17 months late.  Although the claimant was not without remedy (she had been left pecuniary legacies and was the principal beneficiary of a residuary trust), the Court of Appeal found that she should be allowed to bring a claim out of time.  Key factors included the following:

1. The estate was significant (having a probate value of £29 million) such that there were sufficient assets to consider the claimant’s needs without significant prejudice to the needs of other beneficiaries;
2. The length of the claimant’s relationship with the deceased;
3. The fact that the will had left the claimant with no autonomy or security;
4. Negotiations, including a mediation, had taken place between the claimant and beneficiaries prior to the issue of her claim.

The case of Begum v Ahmad [2019] All ER (D) 166 (Oct) was another case where a refusal by the High Court to grant permission to bring a claim out of time was overturned by the Court of Appeal.  This concerned a claim brought 11 months late.  Relevant factors here included the fact that the claimant was disabled and risked losing her home of 25 years, and being left with no other remedy, unless she was permitted to bring a claim.  It was also significant that there was no prejudice to the other beneficiaries as there had been no distribution of the estate as the validity of the will was also being challenged in the courts by the claimant.

The last case, that of Bhusate v Patel and others [2019] EWHC 470 (Ch), involved Anthony Gold as solicitors for the defendants.  This case was interesting because it involved a much longer delay.  In this case the claimant sought to bring an Inheritance Act claim over 25 years out of time.  Again, the High Court, on an appeal from the Master, gave permission to the claimant to bring her claim out of time.  Key factors in the decision to grant permission included the following:

1. Despite the length of the delay, the court found that the claimant was able to give a reason. Specifically, the court found that the claimant had been powerless to progress the administration of her late husband’s estate owing to, amongst other things, the refusal of the beneficiaries to agree to a sale of the deceased’s home.  The court found that the beneficiaries had done nothing to secure a resolution of the situation or compel the administration of the estate.  They had been content to leave matters unresolved.
2. A refusal to grant permission would have left the claimant with no provision or alternative remedy. Had the claimant been able to administer the estate, she would have had rights on the intestacy.  Her failure to administer the estate, however, had resulted in such rights being time-barred.
3. As there had been no distribution of the estate there was no prejudice to the other beneficiaries.

Significantly, in Cowan v Foreman the Court of Appeal held that a strong claim, combined with other factors, could lead a court to give permission despite there being no good reason for delay.  This was qualified, however, by the finding which the Court of Appeal also made that if a case is long out of time, the court is bound to search for an explanation.  These principles seem to be a common theme in the judgments outlined above.

If you require any advice on any of the issues raised in this blog, please contact us on 020 7940 4000 or Oliver.Jackson@anthonygold.co.uk.

*Disclaimer: The information on the Anthony Gold website is for general information only and reflects the position at the date of publication. It does not constitute legal advice and should not be treated as such. It is provided without any representations or warranties, express or implied.*